The archived blog of the Project On Government Oversight (POGO).

Jan 31, 2012

Representatives Show Support for Whistleblower Robert MacLean's Final Appeal

By DANA LIEBELSON

MacLean takes oath as a U.S. Border Patrol agent.

POGO has long been a supporter of whistleblower Robert MacLean--for good reason. Thanks to Bob, Americans can feel safer stepping on an airplane. In 2003, the Transportation Security Administration (TSA) attempted to remove air marshals from "high-risk" flights when there was a heightened intelligence warning of hijackings. MacLean, an air marshal himself, disclosed this dangerous cost-cutting plan. As a result, he was fired.

Now, MacLean only has one more chance to appeal the ruling made by the Merit Systems Protection Board (MSPB), which wrongly decided in July that his case did not constitute retaliation. As POGO has pointed out before, this ruling was flawed for several reasons, and MacLean deserves all legal protections afforded to a whistleblower.

Representatives Carolyn Maloney (D-NY) and Dennis Kucinich (D-OH) plan to send a friend of the court brief to the Court of Appeals for the Federal Circuit that defends MacLean’s retaliation claim. POGO is also encouraging other Members of Congress to do the same, and calling on our readers to get in touch with their Members of Congress about this issue.

MacLean was retaliated against in part because of a policy loophole that essentially amounts to ex post facto law. Like many whistleblowers, MacLean tried to make the disclosure inside his agency but was rebuffed, so he went to the press. Three years later, TSA marked his disclosure—which was an agency-wide, unencrypted text message—as Sensitive Security Information (SSI). TSA then retroactively charged MacLean for mishandling this newly-marked text message by delivering it to the media.

According to MSPB, it basically didn’t matter whether the information was marked SSI or not because MacLean should have known better. But good government groups don’t agree with this so-called logic.

“The Board’s decisions mean that virtually anything can be pseudo-classified and gagged by agency regulations years after the fact. That is a one-two punch to knock out whistleblowers,” said Tom Devine, the legal director at the Government Accountability Project (GAP).

MacLean’s case also demonstrates the weaknesses inherent in current whistleblower protections. According to MSPB, TSA does not dispute that MacLean is a whistleblower who was fired after he sparked congressional action and stopped a potential homeland security risk. However, MSPB did say there are still no whistleblower protections available to him under the law—due, once again, to that tricky retroactive charge.

"Freedom of speech and whistleblower protections are meaningless if some TSA bureaucrat can retroactively deem a disclosure 'sensitive,'" MacLean said. "If I lose, large numbers of would-be government whistleblowers may opt to stay silent."

Comments

Thank you for an important article. I congratulate Representatives Maloney and Kucinich on taking the side of right in this debate. Robert MacLean is a whistleblower who deserves the fullest protection of the law, and all of our gratitude for his service.